Rajasthan High Court - Jaipur
Surendra Mehta vs Bapu Lal And Anr. on 17 December, 2007
Equivalent citations: RLW2008(2)RAJ1448
Author: Sangeet Lodha
Bench: Sangeet Lodha
JUDGMENT Sangeet Lodha, J.
1. This writ is directed against order dated 13.4.2007 passed by the learned Rent Tribunal Udaipur in Original Application (Rent Control) No. 383/04, whereby an application preferred on behalf of the petitioner herein under Section 15(4) read with Section 21(1)(2)(3) of the Rajasthan Rent Control Act, 2001 (in short 'the Act of 2001') seeking leave to file additional reply to the rejoinder filed on behalf of the respondent No. 1 herein has been rejected.
2. The brief facts in nutshell relevant to the controversy involved in this writ petition are that respondent No. 1 filed an application under Section 9(1) of the Act of 2001 before the Rent Tribunal, Udaipur for eviction of petitioner from the shop let out to him, inter alia on the ground of reasonable bonafide necessity. It is stated that son of the respondent No. 1 was earlier doing his business in a rented shop in the name and style of "Balaji Earth Movers", at Emarld Tower, Hathi Pole, Udaipur. It is averred in the application preferred before the Rent Tribunal that the landlord of the said shop, had bonafide necessity of the shop for her own use, therefore, the son of the respondent No. 1 had to shift his business at first floor of the suit premises. It is further stated that for carrying out the business of Earth Movers heavy machinery are installed and its operation at first floor is not convenient and the ground floor of the suit premises is only suitable place for running of the said business by son of the respondent No. 1.
3. The petitioner resisted the application for eviction by way of reply to the application. The averments made in the application were empathically denied and it was stated that the Respondent No. 1 is carrying on business of spare parts only, which can be conveniently carried out at the first floor of the shop in question.
4. A rejoinder to the reply was filed on behalf of the respondent No. 1 before the Rent Tribunal. It is stated that in the rejoinder altogether new facts were pleaded, which were though in the knowledge of the respondent No. 1 were not set out in the original application. In this view of the matter, the petitioner objected the taking of the rejoinder on the record. Alternatively, it was prayed that if such rejoinder is allowed to be taken on record then the petitioner may be permitted to submit additional reply to the same. The application was opposed on behalf of the respondent No. 1. The learned Tribunal has rejected the application preferred by the petitioner vide order 13.4.07, holding that there is no provision under the Act of 2001, which permits filing of reply to the rejoinder. Regarding the new facts stated in the rejoinder, the learned Tribunal opined that the rejoinder filed is only an explanation to the reply filed, which is within the parameters of law. Accordingly, the objection raised by the petitioner against taking of rejoinder on record has been rejected and the alternative prayer made by him seeking leave to file additional written statement has also been disallowed. Hence, this petition.
5. I have heard the learned Counsels for the parties and perused the record. Learned Counsels for the parties have reiterated the arguments raised by them before the learned Tribunal.
6. It is to be noticed that Order 8 Rule 9 of C.P.C. provides for pleadings subsequent to the written statement of the defendant, which reads as under:
No pleadings subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.
7. Thus, as per Order 8 Rule 9 C.P.C., in ordinary course the pleading except in case of plea of set-off or counter-claim ends with the defendant filing the written statement. The plaintiff or defendant is not entitled to file any additional/supplemental written statement except with the leave of the Court. But at the same time, the plaintiff cannot be permitted to raise new pleas and facts in the garb of filing rejoinder so as to alter the basis of the case set out or come forward with altogether a new case to which the defendant has no opportunity to reply. However, it is settled law that where the defendant brings new facts in the written statement the plaintiff must be afforded an opportunity to controvert the allegations/averments incorporated in the written statement.
In the matter of M/s. Ajanta Enterprises v. Bimla Charan Chatterjee and Anr. 1987 (1) RLR 991 while examining the ambit and scope of provisions of Order 8 Rule 9, C.P.C., this Court held that "In the garb of submitting the rejoinder, a plaintiff cannot be allowed to introduce new pleas in his plaint so as to alter the basis of his plaint. In a rejoinder he has to simply explain if certain additional facts have been mentioned in the written- statement and the plaintiff cannot be allowed to come-forward with an entirely new case in his rejoinder. The position of the plaintiff, to make changes in his plaint, cannot be the same as changes which can be allowed to be made in the written-statement, for the reason that a defendant may be allowed to make amendments, which may be different from his earlier pleas but the plaintiff cannot be allowed to alter his original cause of action on which he has come before the Court. On this process, it can be said that the plaintiff cannot by way of rejoinder introduce pleas which are not consistent with earlier pleadings."
8. Similarly in the matter of State of Rajasthan v. Mohd. Iqbal (1998 DNJ (Raj.) 275 while considering the various judgments of different High Court including the judgment of this Court in M/s. Ajanta Enterprise (supra) this Court held that the plaintiff cannot be allowed to introduce new pleas under the garb of filing rejoinder, so as to alter the basis of his plaint. In rejoinder, plaintiff has a right to explain only the additional facts incorporated by the defendant in his written statement. In rejoinder, plaintiff cannot be permitted to come forward with an entirely new case or raise inconsistent pleas so as to alter his original cause of action.
9. It is true that by virtue of provisions of Sub-section (4) of Section 15 of the Act of 2001, the applicant in a rent application is entitled to file rejoinder, if any, to the reply filed on behalf of the non-applicant as a matter of right without seeking leave of the learned Tribunal, but the fact remains that the rejoinder by its very nature shall be confined to the new pleas or facts introduce by the non-applicant in his reply, therefore, the position of law as discussed above shall govern the filing of the rejoinder by the applicant even in the proceedings before the Rent Tribunal under the provisions of the Act of 2001.
10. Adverting to the facts of the present case, it is to be noticed that the suit has been preferred by respondent No. 1 against the petitioner for eviction from the suit premises on the ground of reasonable bonafide necessity. A bare perusal of rejoinder to the reply filed on behalf of respondent No. 1 before the learned Rent Tribunal goes to show that the respondent No. 1, while attempting to establish his bonafide necessity and that the petitioner herein shall comparatively suffered less hardship than him, if he is evicted from the premises in question has introduced so many new facts and tried to set out a case beyond the case set out in the original application. For example in para No. 11 of the rejoinder the respondent No. 1 has stated as under:
;g fd oknxzLr nqdku dh izR;FkhZ dks dksbZ ;qfDr;qDr ,oa ln~HkkoukiwoZd vko;'drk Hkh ugh gS A pwafd izR;FkhZ ds ikl bl le; dqy feykdj ,d cM+k ,oa HkO; 'kks&:e mn;iqj ds ikS'k bykds Qrsgiqjk] mn;iqj esa Hkh 11@, fLFkr gS A lkFk gh izR;FkhZ dh ,d QuhZpj dh nqdku dtjh V~;wfjLV caxyk ds lkeus fLFkr gS] tks gtkjks oxZ QhV dk 'kks&:e gS ,oa vPNh vkenuh gS A blds vykok izR;FkhZ ds ikl 15] vf'ouh cktkj eas Hkh 2 nqdku gS] ftuds QksVkst izkFkhZ us iwoZ esa is'k dj j[ks gS A blds vykok izR;FkhZ ds ikl 56] 'kkL=h ekxZ] v'kksd uxj eSu jksM+] mn;iqj esa Hkh O;olkf;d LFky gS A bu lHkh txgksa ij izR;FkhZ viuk O;olk; djrk gS A izR;FkhZ dk mn;iqj esa dbZ txgksa ij yEck pkSM+k QSyk O;olk; gS] tks gksVyks] fjlksV~lZ ,oa jktdh; laLFkkvks es Hkh QuhZpj lIykbZ dk dk;Z djrk gS A izR;FkhZ us fooknxzLr ifjlj esa vHkh ^3^ ekg iwoZ gh QuhZf'kax ¼insZ bR;kfn½ dk O;oLkk; izkjEHk fd;k gS] ftlds QksVkst Hkh bl tckcqytokc ds lkFk layXu gS A oknxzLr LFky iwoZ esa cUn iM+k jgrk Fkk ,oa izR;FkhZ dtjh V~;wfjLV caxyk ds lkeus] 15 vf'ouh cktkj] mn;iqj es ,oa 11@,] Qrsgiqjk] mn;iqj esa 56 'kkL=h ekxZ] v'kksd uxj esu jksM+ ij O;olk; dj jgk gS A blls Li"V gS fd izR;FkhZ us vius tckc esa ;g xyr dFku fd;k gS fd oknxzLr nqdku es izR;FkhZ ds QuhZpj dk yk[kks :i;s cdk;k gS] tks nqdku [kkyh gksus ij Mwc tk;sxk A In para No. 1 of the reply, the petitioner herein has taken the stand that the respondent No. 1 herein is not the owner of the suit premises, as a matter of fact the same is owned by Shri Shantilal Kothari S/o Shri Nanalal Kothari. In reply to these averments, in rejoinder the respondent No. 1 has stated as under:
egksn;th] fdjk;snkj dks bl rjg dk mtj djus dk dksbZ vf/kdkj ugh gS] D;ksfd Loa; 'kkfUrykyth dksBkjh us foi{kh fdjk;snkj Jh lqjsUnz esgrk dks vius uksfVl fnukad 6-7-2002 ls lwfpr fd;k fd ^^12 vf'ouh cktkj] mn;iqj okyh tks nqdku vkidks fdjk;s ls ns j[kh gS] mijksDr nqdku dk jftLVMZ gdR;kxukek fnukad 16-6-2002 dks ckcwyky firk Jh ukukykyth dksBkjh] mn;iqj fuoklh ds gd esa fu"ikfnr dj fn;k gS A vc ckiwyky dksBkjh gh mijksDr nqdku dk ,dek= ekfyd gS A vr% vkils vuqjks/k gS fd mijksDr nqdku dk fdjk;k fnukad 1-7-2002 ls ckiwyky firk Jh ukukykyth dksBkjh mn;iqj fuoklh dks gh vnk djs ,oa nqdku fd lEcU/k es lc izdkj dk O;ogkj Hkh mlh ls djs A Regarding the bonafide necessity in para No. 7(a) of the original application, the respondent No. 1 has taken the stand that the suit premises is required for his son Pankaj Kothari who was earlier doing his business in a rented shop in the name and style of "Balaji Earth Movers" at Hati Pole, Udaipur which stands vacated on account of personal necessity of owner Smt. Chandra Sarupariya. It is averred that for carrying out the business of Earth Movers heavy machineries are installed and its operation at first floor of the shop in question is causing great hardship/harassment. However, in para No. 24 of the rejoinder the respondent No. 1 has taken the stand as under:
;g fd vthZnkj dks oknxzLr ifjlj dh ;qfDr;qDr ,oa ln~Hkkoukiw.kZ vko;'drk gs ,oa oknxzLr ifjlj [kkyh ugha gks ikus ds dkj.k vthZnkj dk ifjokj orZeku esa 12@lh- e/kqcu] mn;iqj esa Jh x.kirflag th dksBkjh ds edku esa fdjk;s ij ifjokj lfgr fuokl djrk vk jgk gS ,oa bldk ekfld fdjk;k orZeku esa 3000@& :i;s ¼rhu gtkj :i;s½ gS izfrekg fdjk;k vnk djus dh jlhn bl tokcqytokc ds lkFk layXu dh tk jgh gS ,oa mDr fdjk;s'kqnk ifjlj ds ekfyd dk 'kiFk&i= bl tokcqytokc ds lkFk layXu fd;k tk jgk gS A
11. Thus, it is apparent that the respondent No. 1 has not only introduced new facts by way of rejoinder but even attempted to alter the basis of the case set out in the original application. In my considered opinion, the learned Tribunal has failed to examine the rejoinder filed on behalf of the respondent No. 1 in its entirety and objectivity which has resulted in an erroneous finding being arrived at. Suffice is to say that the learned Tribunal has seriously erred in holding that the rejoinder filed only explains the averments made in the reply.
12. The learned Tribunal has also erred In holding that since there is no provision permitting filing of the counter to the rejoinder, therefore, the petitioner herein cannot be permitted to file reply to the rejoinder. It is true that in Sub-section (4) of Section 15 of the Act of 2001, permits filing of the rejoinder but there is no specific provision for permitting any subsequent pleadings thereafter. However, Sub-section (3) of Section 21 of the Act of 2001 specifically provides that the Rent Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but, shall be guided by the principle of natural justice and subject to other provision of the Act or rules made thereunder and shall have power to regulate their own procedure and for the purposes of discharging their function under the Act, they shall have same powers as are vested in civil Court under the Code of Civil Procedure, 1908 by trying the suit or appeal in respect of matters specifically enumerated and any other matter as may be prescribed. Therefore, there is no reason as to why the principle underlying the provisions of Order 8 Rule 9 C.P.C., may not be made applicable to the proceedings under the provisions of the Act of 2001. That apart, the procedure provided for the trial of the suit and misc. proceedings are meant for finding out of truth and impart the justice between the parties. Needless to say that the procedure laid down are always the hand maid of justice and the cause of the justice may not be permitted to be defeated on account of procedural technicalities.
A bare perusal of Sub-section (3) Of Section 21 of the Act 2001 goes to show that the Rent Tribunal or the Appellate Tribunal may not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but, they are bound to adopt the procedure in conformity with the principle of natural justice. It is to be noticed that such provision requiring observance of principle of natural justice by the judicial bodies and quasi judicial authorities are generally not found incorporated in statutes specifically. In my considered opinion, while providing that the Rent Tribunal and Appellate Tribunal shall not be bound by procedure laid down by Civil Procedure Code, 1908, the legislature has consciously and purposely incorporated the said provision that proceeding before the Tribunal shall be guided by the principle of natural justice obviously, for the reason that observance thereof is considered to be assurance of justice and fairness. It is fundamental principle of natural justice that defence of a party to the proceedings before all courts, judicial bodies and quasi judicial authorities must always be fairly heard.
Therefore, viewed from any angle order impugned passed by the learned Tribunal is not sustainable in eye of law. If the learned Tribunal permits the rejoinder filed on behalf of respondent No. 1 to be taken on record then the petitioner herein cannot be denied an opportunity to file a counter to the same to the extent of new pleas and facts incorporated therein by the respondent No. 1.
13. In the result, the writ petition succeeds and it is hereby allowed. The impugned order dated 13.4.2007 passed by the learned Tribunal in Original Application (Rent Control) No. 383/04 is set aside. The matter is remanded to the learned Tribunal to decide the application preferred by the petitioner afresh keeping in view the position of law discussed as above. It is made clear that if the learned Tribunal decides to take the rejoinder as framed, filed on behalf of respondent No. 1 on record, the petitioner shall be permitted to file additional reply to the extent of new pleas and facts incorporated therein. No order as to costs.